RICHMOND — Gov. Terry McAuliffe moved to free Virginia’s abortion clinics from strict hospital-style building codes on Monday, loading up the state health board with abortion rights supporters and ordering it to review rules that clinic operators say threaten to put them out of business.
The Democratic governor is also looking for ways to soften or suspend the rules to keep clinics open during the health board’s review, which could take more than two years. The General Assembly approved the regulations in 2011; they are set to take effect as early as June.
McAuliffe left unclear how quickly the board might act or what the immediate implications for the state’s 18 clinics would be. But his action puts the polarizing issue of abortion back on the front burner in Richmond. It also fits a pattern quickly established by a new governor who won office preaching bipartisanship but has had little luck wooing Republicans: trying to sidestep an adversarial legislature to promote a highly partisan agenda.
Since taking office in January, McAuliffe and Attorney General Mark R. Herring (D) have bucked lawmakers on same-sex marriage and immigration, and they have been exploring whether there is a way to get around the GOP-dominated House’s opposition to expanding Medicaid.
McAuliffe promised throughout last fall’s race to undo the year-old clinic regulations, which were imposed under his predecessor, Robert F. McDonnell (R).
“I am concerned that the extreme and punitive regulations adopted last year jeopardize the ability of most women’s health centers to keep their doors open and place in jeopardy the health and reproductive rights of Virginia women,” McAuliffe said.
After the regulations were finalized last year, clinics were given time to make the building modifications. The deadline for that is June to September, depending on when the clinic was inspected by the state.
As a candidate, McAuliffe said he would do away with the regulations by issuing a “guidance opinion,” a mechanism whose existence legal experts later called into question. Now governor, he has struck upon the review process as a possible way.
The governor’s actions do not, so far, spare the state’s abortion clinics from having to widen hallways, add parking spaces and make other costly building renovations called for in the regulations.
Critics said McAuliffe was merely grandstanding, trying to give his liberal Democratic base something to cheer as he remained mired in a standoff with House Republicans on his top priority, expanding Medicaid to an additional 400,000 low-income Virginians under the Affordable Care Act.
“This was an overtly political move,” said House Speaker William J. Howell (R-Stafford). “The General Assembly, by law, directed the Board of Health to establish regulations to protect the health and safety of women who seek an abortion. This seems like another attempt by the McAuliffe administration to undermine a law they don’t like, and that is very troubling.”
The health board, charged with implementing the regulations, voted in June 2012 to exempt existing clinics from the building codes approved by the legislature and McDonnell. But in a 13 to 2 vote, the board reversed course that September after then-Attorney General Ken Cuccinelli II (R) advised members that they lacked the authority to grandfather clinics.
The about-face came after Cuccinelli wrote to board members suggesting that if they did not heed his advice, his office would not defend them in any resulting litigation and that they could be personally liable for legal bills.
Cuccinelli was McAuliffe’s Republican rival in the governor’s race, and the Democrat often accused the attorney general of bullying the health board during the campaign. Cuccinelli said he was simply making sure that the board followed the General Assembly’s wishes as it implemented the rules.
On Monday, McAuliffe appointed five people to the 15-member health board, filling one vacancy and nudging four other members to wrap up their terms about a month early.
The appointments do not give McAuliffe clear control over the board, and the panel is not obligated to conduct the review. The board, which typically meets only four or five times a year, is expected to consider whether to follow McAuliffe’s wishes at its next meeting on June 5.
Hastening the departure of holdover appointments allows McAuliffe to have his new members in place in time for that meeting.
McAuliffe has, without getting into detail, indicated that he is looking for ways to soften the regulations. Spokesman Brian Coy declined to elaborate on what course he might take.
Abortion rights activists note that state health officials have the power to issue one-year variances to clinics that demonstrate that they are trying to comply with the rules but cannot do so by deadline.
There is nothing in the regulations that would prohibit officials from granting a succession of one-year variances, the activists said.
Another avenue of reprieve for abortion rights supporters is a pending lawsuit brought by a Falls Church clinic. They are hoping that the judge in that case will order a stay of the rules.
Whatever their ultimate impact, McAuliffe’s actions are a striking departure from those of McDonnell, an opponent of abortion.
The Republican also appointed like-minded people to the health board, but always tiptoed around whether abortion was a factor in doing so.
McAuliffe, elected with help from abortion rights groups, made no pretense of ignoring the litmus test, stating flatly that his appointees reflected his views not only on abortion but also on the need to review the clinic regulations. The five appointees “share his commitment to women’s health and support his plan to review the health center regulations,” the governor’s office announced in a written statement.
Another contrast: McDonnell made his appointments to the health board only when vacancies arose, said Janet Vestal Kelly, who was the Republican’s secretary of the commonwealth. McDonnell cleaned house at the Port Authority Board in 2011, but that is a board whose members serve at the pleasure of the governor. Not so with the health board, she said.
“This is not one of those boards,” Kelly said. “It is very important to respect the rule of law.”
Coy acknowledged that the governor cannot force anyone from the health board, but he said the four were willing to leave early when asked. McAuliffe said he had “a right and a responsibility to have reasonable people of my own choosing at the table for that review.”
Abortion rights supporters cheered what they saw as a gutsy first step toward loosening regulations in a state that tightened them year after year under McDonnell. The move strengthens McAuliffe’s credibility with those activists, who were critical to his election effort but felt jilted when he appointed McDonnell’s health secretary as his own.
The abortion issue has been unusually muted in the past two legislative sessions. Republican leaders have sought to keep it quiet since 2012, when a bill that would have forced women to get a vaginal ultrasound before an abortion subjected them to national ridicule. Democrats used the issue effectively in last year’s gubernatorial race, and they hope to do so again in this year’s midterm elections.
Yet there could be a political downside for McAuliffe, who takes the step as he seeks to get conservative Republicans on board with Medicaid expansion. Abortion opponents characterized McAuliffe’s move as yet another end run around the legislature.
“Whether the governor and the abortion industry like it or not, the law of Virginia requires that abortion centers have health and safety standards,” said Victoria Cobb, president of the Family Foundation of Virginia.
The governor’s office took pains to say that he was working within the law, merely on an expedited basis. Any regulation can be reviewed every four years after its adoption, Coy said.
“The governor is not a king, but he’s doing everything within his power,” Coy said.